Bill, Opposed by NJPA, Would Forbid Media Getting Post-Arrest Mug Shots

TRENTON – Persons arrested but not convicted would benefit from a proposed law that would prohibit law enforcement agencies from providing mugs shots to the media. The bill A-3906, which passed the Assembly 69-11 Dec. 19, received support from First District Assemblymen Nelson Albano and Robert Andrzejczak.
That bill is sponsored by Assemblyman Angel Fuentes (D-5th) of Audubon. In the Senate a companion bill S-3046 is sponsored by Sen. Anthony Bucco, (R-25th) of Denville.
The New Jersey Press Association, a non-profit organization representing 20 daily and 160 weekly newspapers, 50 digital news websites and over 60 corporate and non-profit associate members, opposed the bill.
Time is running short for the bill to become law.
The bill’s next step would be before the Senate Law and Public Safety Committee for a hearing. However, there is no requirement that the committee hold such a hearing. Thus, if the Senate leadership would hold the bill, no Senate vote could be taken. If that does not happen by Jan. 14, the legislative session ends, and “everything goes back to square one at the start of the next two-year session of 2014-2015,” stated George White, NJPA executive director.
Specifically, the bill would exempt from the definition of a government record, under the Open Public Records Act, “Photographs of an arrestee taken by any law enforcement agency if the arrest has not resulted in a conviction, except for use by any government agency, including any court or law enforcement agency, in carrying out its functions.” That means the bill would keep mug shots from the media and the public under the law.
According to a position paper by NJPA, the bill is “contrary to New Jersey’s long-standing, strong public policy of open government, including ready access to government records, as set for in OPRA; does not achieve its stated goal of ‘protecting the reputations of arrestees who have not been found guilty; conceals from the public critical information and stifles accurate and legitimate reporting on matters of public interest and concern; and has the potential for increasing confusion as to the identity of the actual person arrested.”
The Herald publishes, as do other publications, mug shots of persons arrested. Many of them are provided by the county Correctional Center. It also publishes those of wanted individuals provided by the county Sheriff’s Office and Prosecutor’s Office. The latter photographs, however, would not be affected by the bill, since those persons have already been convicted and are being sought by law enforcement.
According to the statement on the bill, “The bill would protect the reputations of arrestees who have not been found guilty of the crimes for which they were arrested by eliminating ready public access to their mug shots.
“Such access enables ready publication of mug shots, which can unfairly damage or ruin the relationships and professional prospects of people who were not even found to have committed the wrongdoing charged, particularly if such publication is made on the Internet. The harm these people face may also be compounded by exploitative websites which indiscriminately post mug shots and charge exorbitant fees for their removal.
“This bill would help restore the presumption of innocence to which people who are not convicted of wrongdoing are entitled. Under this bill, government agencies could still release mug shots to news media and others for law enforcement purposes such as public warnings.”
According to the NJPA, “If one were to carry the bill’s rationale, namely to protect the reputation of arrestees who have not been found guilty, to its logical conclusion, one would have to exempt from public access the very information about an arrestee that is required to be disclosed under OPRA, the prior Right to Know Law and Executive Orders issued by past governors; one would have to close all courtrooms to the public unless and until a person being tried therein was convicted; one would have to seal all court records pertaining to criminal cases until the proceedings were complete and, even then, only if the proceedings resulted in a conviction; one would have to silence newspapers and other media broadcasts that report on arrests of public officials, celebrities, school bus drivers, repeat sexual offenders; neighborhood drug dealers, teachers, clergy, coaches, and others about whom the public obviously has a legitimate interest and concern.
“Clearly, such a result is untenable and flies in the face of New Jersey’s policy of open and transparent government.”
One of the concerns is Internet websites that post all mug shots, and then charge high fees to remove them.
According to NJPA, “Removing arrest photos from the public domain until a conviction far overreaches, if the aim is deterring unscrupulous mug shot websites. It’s the functional equivalent of outlawing motor vehicles because of unsafe or unlawful drivers. In the same respect, it would be far better to address the practice of charging fees to remove photos, the reason these sites are operated in the first place.
“Second, the sponsors’ claim that the bill is needed to protect the ‘innocent until proven guilty’ widely opens the door to additional record-closures that logically would then follow.
“Fundamentally, for a person to be arrested there must be probable cause a crime has been committed. If the sponsors believe a photo undermines an arrestee’s presumption of innocence, how can this not be the first step in closing access to all details of a criminal proceeding; from arrest through trial, and only if there is conviction?
“A mug shot photo is but a form of a person’s identification. And isn’t the person’s name and address more identifying than the photo itself? So should the public not expect that complete closure of arrest records, until there is a conviction, will be next?”